National
Legal effort to overturn DOMA offers ‘promising path’
Attorneys prepare for May court hearing in Boston
The organization spearheading a lawsuit challenging the Defense of Marriage Act is busy with preparations for what could be a monumental court case for LGBT Americans.
Lawyers on both sides of Gill v. U.S. Office of Personnel Management will come before the Federal District Court in Boston on May 6 to argue their cases.
The litigation, filed by Gay & Lesbian Advocates & Defenders, aims to overturn Section 3 of DOMA, which bars the federal government from recognizing same-sex marriages.
Evan Wolfson, executive director of Freedom to Marry, said the GLAD litigation is “a very important, very well prepared case” and “offers a very promising path to beginning to undo the destructive and unconstitutional so-called Defense of Marriage Act.”
“GLAD thought through very carefully the best way to present the core concerns, powerful stories and a smart remedy to maximize our chances of winning in the U.S. Supreme Court,” he said.
Wolfson said he’s certain that GLAD’s attorneys will “be very forceful” in explaining why the federal government’s treatment of same-sex married couples is “unacceptable and unconstitutional.”
The plaintiffs in the case are seven married same-sex couples and three widowers, including Dean Hara, the spouse of Gerry Studds, the late Massachusetts congressman and first openly gay person to serve in Congress.
GLAD contends that as a result of DOMA, which President Bill Clinton signed in 1996, these plaintiffs have been harmed in various ways, including the denial of survivor benefits, health insurance coverage and Social Security benefits, as well as being forced to pay additional federal income taxes. The litigation contends DOMA violates plaintiffs’ rights under the Equal Protection Clause.
Gary Buseck, GLAD’s legal director, said preparations for the court appearance involve submitting several documents to the court to make their case before Judge Joseph Tauro.
The documents, he said, include memoranda of law to the court, a series of affidavits from the plaintiff couples and widowers, and expert affidavits showing why these couples should be treated as a suspect class for heightened scrutiny from the court.
“What we’re trying to think about is best arguments and how to succinctly present our best arguments,” he said. “We’re trying to think about — given what the government has put to writing — what are they likely to lead with, and are we content with the responses that we’ve written, and trying to imagine what the judge might ask.”
Representing the seven married same-sex couples and three widowers seeking federal marriage benefits in Massachusetts will be Mary Bonauto, GLAD’s civil rights project director.
Six years ago, Bonauto was the lead attorney in Goodridge v. Department of Public Health, the state lawsuit that brought same-sex marriage to Massachusetts, making the Bay State the first in the country to legalize gay nuptials.
Buseck said Bonauto is working on being “as heavily as prepared as possible” so she can “answer any question.”
Buseck said the court appearance on May 6 for the GLAD case wouldn’t be the same as the trial earlier this year for Perry v. Schwarzenegger, a lawsuit in California aimed at overturning Proposition 8.
Because the U.S. government filed a motion to dismiss and GLAD filed a request for summary judgment, Buseck said he’s expecting about 45 minutes to an hour of courtroom activity May 6 instead of a trial lasting several weeks, as in the Perry case.
“We don’t know exactly how much time we’re going to have,” he said. “It’s not like an appeals court where they give you a set of block of time and that’s what you get. This is going to be a little more informal than that.”
The Justice Department didn’t respond to DC Agenda’s request to discuss the case.
Buseck said GLAD can guess how the U.S. government will present itself during the court appearance because of the briefs the Justice Department has already issued.
He noted the Obama administration has said it doesn’t agree with the findings Congress presented in 1996 when it passed DOMA and that it considers the statute is discriminatory, but will nonetheless defend the statute because it believes the statute is constitutional.
Buseck predicted that the government will argue it was rational for Congress to enact DOMA in 1996 in an effort to maintain the status quo and “wait and see how this cultural debate plays out.”
“That’s been their fundamental argument to date, and presumably that’s where they’re going to stick,” he said. “So we’re ready for that. We’ve had to respond to those arguments in writing already.”
Legal experts following the case of Gill v. OPM expect it to reach the U.S. Supreme Court and, if successful, the lawsuit would force the U.S. government to recognize same-sex marriages for federal tax purposes and for Social Security benefits.
Buseck said he thinks it’s possible a decision could come down from a trial court in the summer, but more likely a ruling will be issued this fall.
Following the decision, Buseck said the case would likely go to the First Circuit Court of Appeals at the beginning of next year with a possible decision in Spring 2012. If the case were to go to the U.S. Supreme Court, it could go on the 2012 term and be decided in June 2013.
But Buseck emphasized that those dates were a “ballpark” estimate and said “there’s a lot of things that could change those dates.”
Running concurrently with the Gill lawsuit in the Federal District Court in Boston is another case challenging DOMA last year by Massachusetts Attorney General Martha Coakley: Commonwealth of Massachusetts v. U.S. Department of Health & Human Services.
Like the Gill case, the state lawsuit challenges the section of DOMA that prohibits the federal government from recognizing same-sex marriage, but contends that it violates Massachusetts’ state right to regulate marriage under the Tenth Amendment.
The Commonwealth case will be heard in the same court and by the same judge, but the court date is scheduled for May 26.
Buseck said the Commonwealth case and the Gill case “complement each other” but “are in different boxes as far as legal theories go.”
“My sense is the judge will probably just for efficiencies’ sake somehow work on these cases together and it’s been my guess — but I’ve no reason to know that — I won’t be surprised if we get decisions on the same day,” Buseck said.
National
EXCLUSIVE: Rodrigo Heng-Lehtinen to step down from Advocates for Trans Equality
A4TE formed last year when two transgender rights groups merged
Advocates for Trans Equality Executive Director Rodrigo Heng-Lehtinen on Monday announced he will step down on April 30.
The Transgender Legal Defense and Education Fund and the National Center for Transgender Equality formed Advocates for Trans Equality last year when they merged. Heng-Lehtinen was previously NCTE’s executive director.
“Now that we’ve made it through the merger, and A4TE is established as a new, prominent institution fighting hard for trans equality, it’s time for me to take my next step,” said Heng-Lehtinen in a press release that Advocates for Trans Equality sent exclusively to the Washington Blade. “When Andy (Hong Marra) and I began envisioning the merger, I committed to seeing it through. I’m proud that now our vision has been realized. A4TE has not just launched, but is fully up and running, delivering results for trans people around the country. With A4TE gaining momentum, I’m now ready to move on to my next chapter.”
Heng-Lehtinen, whose mother is former Florida Congresswoman Ileana Ros-Lehtinen, in the press release stressed he “will be focusing on changing hearts and minds.”
“With my background in persuasion and messaging, it’s where I can make the biggest difference, and what I feel called to return to in this era of anti-trans backlash,” said Heng-Lehtinen. “I will still be fighting shoulder-to-shoulder with everyone (in) the trans movement, simply in a different capacity.”
Marra, who is Advocates for Trans Equality’s CEO, praised Heng-Lehtinen and said the organization’s work will continue.
“We thank Rodrigo for his years of dedicated leadership and service,” said Marra. “A4TE will continue to deliver on our promise to advocate for the lives of trans people who need us now more than ever. We remain undaunted by our endeavor to ensure trans people and our families are no less than free and equal and treated with dignity and respect.”
Louisiana Trans Advocates Executive Director Peyton Rose Michelle also praised Heng-Lehtinen.
“Rodrigo has been a steady hand and a bright light in this work,” she said. “He’s someone who shows up with integrity, kindness, and a deep commitment to meeting this political moment with courage. I’ve always felt deeply supported and heard by him, which is something I value deeply.”
“I fully support him as he steps into this new chapter, and I know his clarity of vision and heart-forward leadership will keep shifting this landscape back toward justice for trans people, and therefore, all people,” added Michelle.
U.S. Federal Courts
Federal judge blocks Trump passport executive order
State Department can no longer issue travel documents with ‘X’ gender markers
A federal judge on Friday ruled in favor of a group of transgender and nonbinary people who have filed a lawsuit against President Donald Trump’s executive order that bans the State Department from issuing passports with “X” gender markers.
The Associated Press notes U.S. District Judge Julia Kobick in Boston issued a preliminary injunction against the directive. The American Civil Liberties Union, which represents the plaintiffs, in a press release notes Kobick concluded Trump’s executive order “is likely unconstitutional and in violation of the law.”
“The preliminary injunction requires the State Department to allow six transgender and nonbinary people to obtain passports with sex designations consistent with their gender identity while the lawsuit proceeds,” notes the ACLU. “Though today’s court order applies only to six of the plaintiffs in the case, the plaintiffs plan to quickly file a motion asking the court to certify a class of people affected by the State Department policy and to extend the preliminary injunction to that entire class.”
Former Secretary of State Antony Blinken in June 2021 announced the State Department would begin to issue gender-neutral passports and documents for American citizens who were born overseas.
Dana Zzyym, an intersex U.S. Navy veteran who identifies as nonbinary, in 2015 filed a federal lawsuit against the State Department after it denied their application for a passport with an “X” gender marker. Zzyym in October 2021 received the first gender-neutral American passport.
The State Department policy took effect on April 11, 2022. Trump signed his executive order shortly after he took office in January.
Germany, Denmark, Finland, and the Netherlands are among the countries that have issued travel advisories for trans and nonbinary people who plan to visit the U.S.
“This ruling affirms the inherent dignity of our clients, acknowledging the immediate and profound negative impact that the Trump administration’s passport policy would have on their ability to travel for work, school, and family,” said ACLU of Massachusetts Legal Director Jessie Rossman after Kobick issued her ruling.
“By forcing people to carry documents that directly contradict their identities, the Trump administration is attacking the very foundations of our right to privacy and the freedom to be ourselves,” added Rossman. “We will continue to fight to rescind this unlawful policy for everyone so that no one is placed in this untenable and unsafe position.”
State Department
HIV/AIDS activists protest at State Department, demand full PEPFAR funding restoration
Black coffins placed in front of Harry S. Truman Building
Dozens of HIV/AIDS activists on Thursday gathered in front of the State Department and demanded the Trump-Vance administration fully restore President’s Emergency Plan for AIDS Relief funding.
Housing Works CEO Charles King, Health GAP Executive Director Asia Russell, Human Rights Campaign Senior Public Policy Advocate Matthew Rose, and others placed 206 black Styrofoam coffins in front of the State Department before the protest began.
King said more than an estimated 100,000 people with HIV/AIDS will die this year if PEPFAR funding is not fully restored.
“If we continue to not provide the PEPFAR funding to people living in low-income countries who are living with HIV or at risk, we are going to see millions and millions of deaths as well as millions of new infections,” added King.
Then-President George W. Bush in 2003 signed legislation that created PEPFAR.
The Trump-Vance administration in January froze nearly all U.S. foreign aid spending for at least 90 days. Secretary of State Marco Rubio later issued a waiver that allows the President’s Emergency Plan for AIDS relief and other “life-saving humanitarian assistance” programs to continue to operate during the freeze.
The Washington Blade has previously reported PEPFAR-funded programs in Kenya and other African countries have been forced to suspend services and even shut down because of a lack of U.S. funding. Two South African organizations — OUT LGBT Well-being and Access Chapter 2 — that received PEPFAR funding through the U.S. Agency for International Development and the Centers for Disease Control and Prevention in recent weeks closed down HIV-prevention programs and other services to men who have sex with men.
Rubio last month said 83 percent of USAID contracts have been cancelled. He noted the State Department will administer those that remain in place “more effectively.”
“PEPFAR represents the best of us, the dignity of our country, of our people, of our shared humanity,” said Rose.
Russell described Rubio as “ignorant and incompetent” and said “he should be fired.”
“What secretary of state in 90 days could dismantle what the brilliance of AIDS activism created side-by-side with George W. Bush? What kind of fool could do that? I’ll tell you who, the boss who sits in the Harry S. Truman Building, Marco Rubio,” said Russell.
EXCLUSIVE: Rodrigo Heng-Lehtinen to step down from Advocates for Trans Equality
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